Karnataka High Court
The Manager Legal vs Sharada And Ors on 2 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.201996/2019 (MV)
BETWEEN:
The Manager Legal,
IFFCO -TOKIO General Insurance Co. Ltd.,
Customer Service Center, Shanti Tower,
5th Floor, 3rd main, East and NGEF Layout,
Kasturi Nagar, Bangalore.
... Appellant
(By Sri Subhash Mallapur, Advocate)
AND:
1. Sharada W/o Gurupadappa Gunaki,
Age: 49 yeas, Occ: Household work,
2. Gurubai @ Nikita W/o Mallikarjun Ganganalli,
Age: 31 years, Occ: H.H.Work,
3. Jagadevappa S/o gurupadappa Gunaki,
Age: 29 years, Occ: Student,
4. Paramanand S/o Gurupadappa Gunaki,
Age: 27 years, Occ: Student,
2
5. Chandramappa S/o Jagadevappa Gunaki,
Age: 76 years, Occ: Nil,
All R/o Near Ashram, Kalika Nagar,
Vijayapur - 586 101.
6. Appasaheb S/o Devendrappa Angadi,
Age: 47 years, Occ: Business,
R/o #42, New Sambra Road,
Airport Road, Gandhi Nagar,
Belgaum - 580 029.
... Respondents
(Sri Basavaraj R. Math, Advocate for R1 to R5;
R6 - served)
This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal by setting aside the judgment and award dated
20.06.2019 in MVC No.1271/2015 passed by the IV Addl.
Dist. Judge and Motor Accident Claims Tribunal-XIII,
Vijayapur.
This appeal coming on for Admission this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The insurance company has preferred this appeal
under Section 173(1) of the Motor Vehicles Act, assailing
the judgment and award dated 20.06.2019 passed in MVC
No.1271/2015 by the Motor Accidents Claims Tribunal
No.13, Vijayapur (hereinafter referred to as 'the Tribunal'
for short) on the ground of liability as well as quantum.
2. The claimants filed a claim petition before the
Tribunal under Section 166 of the Motor Vehicles Act,
seeking compensation of Rs.74,46,756/- on account of
death of one Gurupadappa Gunaki, who died in a fatal road
accident, contending that on 01.02.2015 at about 7.15
p.m., when the deceased was proceeding from Tikota to
Vijayapur after attending the function on his motorcycle
bearing Reg.No.KA-01/S-7068 and reached Ratnapar
cross, hit a stationary truck bearing Reg.No.KA-22/A-4325
which was parked in the center of the road. Due to the
impact, the deceased suffered grievous head injuries and
later on, on the same day succumbed to the injuries. The
deceased was a government school teacher, earning
monthly salary of Rs.26,098/- and the claimants are the
wife, children, sister and father of the deceased. The
deceased was hale and healthy at the time of accident and
was the only breadwinner of the family.
3. Pursuant to issuance of summons by the
Tribunal, respondent No.2-insurance company appeared
and filed objections denying the accident and contended
that the accident occurred due to the gross negligence on
the part of the deceased and also sought to contend that in
the event the documents as per the statutory requirement
are not produced by respondent No.1-owner, then absolve
the liability.
4. On the basis of the pleadings, the Tribunal
framed the following:
ISSUES
1. Whether petitioners prove that on
1-2-2015 at about 7.15 p.m. near
Tatnapur cross, on Tikota-Vijayapur
road, Gurupadappa son of
Chandramappa Gunaki met with road
traffic accident due to actionable
negligence on the part of the driver of
the Lorry bearing Reg.No.KA-22/
A-4325 and died on the way to the
hospital?
2. Whether the respondent No.2 proves
the violation of terms and conditions of
insurance policy?
3. Whether the petitioners proves the age
and income of the deceased?
4. Whether petitioners are entitled for
compensation, if so, to what quantum
and from which of the respondent?
5. What order or award?
5. To prove their case, claimant No.3 examined
himself PW.1 and an independent witness was examined
as PW.2 and got marked documents as Exs.P1 to P11. On
behalf of the respondents, the officer of respondent No.2
was examined as RW.1 and got marked Exs.R1 to R4.
6. On the basis of pleadings, evidence and
material on record, the Tribunal has partly allowed the
claim petition and awarded compensation of
Rs.43,94,852/- with interest at the rate of 9% per annum
from the date of petition till realization holding that the
respondents are jointly and severally liable to pay the
compensation. The Tribunal has awarded the aforesaid
compensation under the following heads:
1. Loss of income Rs.30,53,400/-
2. Loss of future prospects Rs.12,21,386/-
3. Spousal Consortium Rs.50,000/-
4. Parental consortium Rs.25,000/-
5. Loss of consortium Rs.30,000/-
6 Funeral expenses Rs.15,000/-
Total Rs.43,94,852/-
7. Aggrieved by granting of compensation and
fastening the liability on the insurance company, the
present appeal is filed.
8. Heard the learned counsel for the appellant-
insurance company and the learned counsel for respondent
Nos.1 to 5-claimants.
9. Sri. Subhash Mallapur, learned counsel for the
appellant would contend that the insurance company is not
liable to pay the compensation, as the accident took place
due to the sole negligence on the part of the deceased, as
he dashed the motorcycle into the stationed truck and also
contended that the deceased was not possessing driving
licence to ride the motorcycle and sought to absolve the
liability fastened on the insurance company.
10. Insofar as the quantum of compensation
awarded by the Tribunal, the learned counsel would
contend that the Professional Tax of Rs.200/- is not
deducted from the gross salary, 30% is added towards
future prospects instead of 15% and sought to reassess
the compensation.
11. Per contra, Sri. Basavaraj R. Math, learned
counsel for respondent Nos.1 to 5 would justify the
quantum of compensation awarded by the Tribunal and
also contended that the reasoning of the Tribunal in
fastening the liability on the owner and the insurance
company jointly and severally to pay the compensation
amount is just and proper.
12. Having heard the learned counsel for the
parties and in view of the rival contentions, the following
points would arise for consideration in this appeal:
1) Whether the Tribunal was justified in fastening
the liability on the owner and the insurance
company jointly and severally and directing the
insurance company to pay the compensation?
2) Whether the quantum of compensation
awarded by the Tribunal needs reassessment?
Point No.1 :
13. Ex.P1 is the FIR, Ex.P3 is the Spot
Panchanama with map, Ex.P4 is the M.V. Report, Ex.P5 is
the Inquest Panchanama and Ex.P6 is the Charge Sheet
filed against the driver of the offending vehicle. Exs.P1 to
P5 early indicate that the offending vehicle i.e., truck
bearing Reg.No.KA-22/A-4325 was parked in the middle of
the road without indication to endanger the human life. As
per Ex.P6, the driver of the offending vehicle was charge
sheeted in C.C.No.3162/2015 for the offence punishable
under Section 283 of IPC.
14. A perusal of Exs.P1 to P6 clearly indicate that
the accident occurred due to the negligence on the part of
the driver of the offending vehicle having parked in the
middle of the road. Insofar as the contention of the
insurance company regarding violation of the policy
conditions is concerned, no evidence is forth coming about
the violation of terms and conditions of the policy. For the
reasons stated supra, the liability fastened on the
insurance company does not call for any interference.
Accordingly, point No.1 is answered in the affirmative.
Point No.2:
15. On perusal of the impugned judgment and
award, the quantum of compensation awarded by the
Tribunal needs to be reassessed.
16. The deceased being a Government School
Teacher was drawing gross monthly salary of Rs.26,098/-
as per Ex.P7-Pay Slip. The Tribunal has not deducted the
Professional Tax at Rs.200/- and the future prospects
added to the salary is 30% as against 15% considering the
age of the deceased as 50 years in view of the judgment of
the Hon'ble Apex Court in National Insurance Company
Limited vs. Pranay Sethi and others reported in
(2017) 16 SCC 680. Thus, the loss of dependency needs
to be reassessed in the following terms:
The salary of the deceased is Rs.26,098/- less
Professional Tax Rs.200/- = Rs.25,898/-. The age of the
deceased being 50 years, 15% to be added towards future
prospects and 1/4th is to be deducted towards personal
expenses of the deceased from the gross salary, as the
dependents are five in number and considering the age of
the deceased, the appropriate multiplier would be 13.
Thus, the total loss of dependency would come to
Rs.34,84,611/- (Rs.25,898 + 15% i.e., Rs.3,885 =
Rs.29,783/- x 12 x 13 x 3/4).
17. Thereby, the compensation payable to the
claimants is reassessed as under:
1. Loss of dependency Rs.34,84,611/-
2. Loss of consortium Rs.2,00,000/-
(Rs.40,000 x 5)
3. Loss of estate Rs.15,000/-
4. Funeral expenses Rs.15,000/-
Total Rs.37,14,611/-
18. Thus, the claimants are entitled for total
compensation of Rs.37,14,611/- along with interest at 6%
p.a. as against Rs.43,94,852/- as awarded by the Tribunal.
In view of the above, point No.2 is answered in the
affirmative.
19. In the result, we pass the following:
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment and award dated
20.06.2019 passed by the Tribunal in MVC
No.1271/2015 is hereby modified. The
appellant-insurance company is liable to pay
the compensation of Rs.37,14,611/- as against
Rs.43,94,852/- as awarded by the Tribunal.
iii) Respondent Nos.1 to 5/claimants are entitled
for total compensation of Rs.37,14,611/- with
interest at 6% per annum as against
Rs.43,94,852/- as awarded by the Tribunal.
iv) The appellant-insurance company is directed to
pay the compensation as modified by this
Court in favour of the claimants by depositing
the same within a period of twelve weeks from
the date of receipt of a certified copy of this
judgment.
v) The amount in deposit before this Court is
directed to be transmitted to the Tribunal for
disbursement.
vi) Registry to transmit the Trial Court records to
the Tribunal.
vii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
